A aplicação das medidas executivas atípicas nas execuções fiscais: uma análise à luz da efetividade da decisão judicial e dos direitos fundamentais

Abstract

This study aims to examine the possibility of applying atypical enforcement measures in tax enforcement proceedings, based on an analysis of the development of the general enforcement clauses introduced by the Brazilian Code of Civil Procedure of 2015, the constitutional foundations that support their use, and the criticisms raised against their application. The 2015 Code of Civil Procedure incorporated general clauses in order to provide greater flexibility to the procedural system and to expand judicial discretion to restrain conduct intended to frustrate enforcement. In this context, the relevance of atypical enforcement measures in tax enforcement proceedings is evidenced by intense doctrinal and jurisprudential debate, as well as by the examination of the matter by the higher courts. The study analyzes the bottleneck of tax enforcement and the ineffectiveness of judicial protection, considering the significant delay of such proceedings within the Brazilian Judiciary, as well as the importance of tax collection for maintaining the Fiscal Social State and for the realization of fundamental rights. It also addresses the need to reconcile the effectiveness of enforcement with the protection of the debtor’s rights, through a balancing test applied to the specific circumstances of each case. The research examines the positions adopted by the Superior Court of Justice and the Federal Supreme Court regarding the constitutionality and limits of atypical enforcement measures, with emphasis on landmark decisions on the subject. Methodologically, a hybrid approach is adopted, combining descriptive and exploratory research, bibliographic and documentary review, and legislative, doctrinal, and jurisprudential analysis. The study concludes that the use of atypical enforcement measures, when subject to constitutional scrutiny, may contribute to the effectiveness of tax enforcement, the reasonable duration of proceedings, and effective judicial protection, as well as to the promotion of a sustainable Fiscal Social State.